WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18..

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. D.K., 2020 ONCA 79

DATE: 20200203

DOCKET: C66287

Watt, Huscroft and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

D.K.

Appellant

Paul Calarco, for the appellant

Catherine Weiler, for the respondent

Heard: November 6, 2019

On appeal from the conviction entered by Justice William R. Wolski on July 26, 2018 of the Ontario Court of Justice.

Trotter J.A.:

A. introduction

[1] D.K. was charged with sexual assault causing bodily harm, contrary to s. 272(1)(c) of the Criminal Code, R.S.C. 1985, c. C-46. He had sexual intercourse with his common law partner, J.D., and caused a three-centimeter laceration to the inside of her vagina. At trial it was undisputed that sexual intercourse had occurred; the contentious issue was whether J.D. had consented.

[2] The trial judge found the appellant not guilty of sexual assault causing bodily harm, but guilty of the included offence of sexual assault: Criminal Code, s. 271. He imposed a sentence of three years’ imprisonment, less credit for pre-sentence custody.

[3] The appellant appeals his conviction on four grounds. First, he challenges the trial judge’s ruling under s. 276 of the Criminal Code, refusing to permit cross-examination of J.D. about her alleged sexual activity with the appellant after the incident in question. Second, he argues that the trial judge erred in dismissing his third party records application under ss. 278.1-278.9. Third, the appellant submits that the trial judge misused J.D.’s utterance to a doctor that her injury was caused by “forced intercourse”. Finally, the appellant contends that the trial judge reversed the burden of proof in evaluating his evidence.

[4] These reasons explain why I would allow the appeal based on the appellant’s third argument. The trial judge improperly relied upon J.D.’s “forced intercourse” utterance, a prior consistent statement, to enhance her credibility. As discussed below, it played a dominant role in the trial judge’s analysis. I would reject all other grounds of appeal.

B. factual backdrop

[5] On November 16, 2013 J.D. was rushed to Mount Sinai Hospital in Toronto, bleeding profusely from her vagina. It was common ground that her injury was caused during sexual intercourse with the appellant. However, the evidence of J.D. and the appellant differed markedly on the surrounding circumstances. J.D. said she did not consent to intercourse. The appellant testified that the sexual intercourse was consensual and that the injury was caused accidentally.

(1) J.D.’s Version of Events

[6] J.D., who was 47 at the time, said that she had argued with the appellant that evening over his crack cocaine use, and because she believed he had been unfaithful to her. J.D. threw the appellant out of her apartment.

[7] The appellant returned a short while later and he was angry. He ordered J.D. to remove her clothes because he wanted to have sex. J.D. explained, “He told me that either I take my clothes off or he’ll rip my fucking clothes off himself.” J.D. complied out of fear. J.D. was told to lay on the bed on her back and the appellant penetrated her. The appellant then told J.D. to get on her hands and knees and penetrated her from behind. She described the penetration, which lasted for ten minutes, as “regular hard sex” and “rough”.

[8] While being penetrated from behind, J.D. felt something “burst” inside of her – “you could feel it and you could hear it.” Then there was “all kinds of blood”, which she could feel streaming down her legs. J.D. told the appellant to stop, but he did not do so immediately. She told the appellant that she was bleeding and again told him to stop. This time he did. J.D. went into the shower but was unable to stop the bleeding. At her request, 911 was called and paramedics were dispatched.

[9] J.D. was taken to Mount Sinai Hospital. The appellant was allowed to ride in the ambulance. On the way, the appellant told the paramedics that he did not know why J.D. was injured because they only had rough sex. J.D. said nothing because she was too afraid; the appellant told her to say that they just had rough sex.

[10] When they arrived at the hospital, J.D. received a blood transfusion. The appellant remained in the room and continued telling her to say nothing. While she was at the hospital, J.D. could not recall telling anyone what actually happened, nor being asked if she wanted to call the police. As discussed in more detail below, J.D. eventually had surgery to repair the injury to her vagina.

[11] J.D. first reported the sexual assault in January 2016, when she was staying at a crisis centre in Guelph. This was about a year after her relationship with the appellant had ended.

[12] In cross-examination, defence counsel suggested to J.D. that there was no argument with the appellant; she consumed crack cocaine that evening; the sexual intercourse was consensual; and it occurred when she was laying on her back (not while she was on her hands and knees). She denied each of these propositions.

(2) The Appellant’s Version of Events

[13] The appellant was 56 years old at the time of the incident. He met J.D. on the street in the summer of 2013 when they were both doing crack cocaine. The appellant was living at a shelter and J.D. asked him to move in with her.

[14] On November 16, 2013 the appellant worked during the day and returned to J.D.’s apartment, where he had a beer or two. After dinner, the appellant went out and bought some crack cocaine and returned to the apartment. Both he and J.D. consumed the drugs. The appellant and J.D. watched two movies on the VCR and then decided “to get intimate.” He described consensual sex during which he was on top of J.D. He denied penetrating her from behind. The appellant heard something burst inside of J.D., followed by a lot of blood. He stopped “two seconds” after the bursting sound when he saw all of the blood. He called 911. The appellant denied that J.D. had asked him to stop, but later admitted that it was possible.

[15] The appellant denied instructing J.D. to minimize the circumstances in which her injury was caused. He also denied that, on the night of the incident, they argued about his crack use, or that J.D. alleged that he was unfaithful. While the appellant acknowledged that they argued from time to time, they did not argue that night.

(3) J.D.’s Injury

[16] J.D. was treated by Dr. Michael Sved, a gynaecologist and obstetrician at Mount Sinai Hospital. He testified that J.D. lost two litres of blood (i.e., approximately 40% of her blood volume). This triggered a “Code Omega” – a procedure similar to a “Code Blue”, called when a patient goes into cardiac arrest.

[17] Dr. Sved performed surgery on J.D. He discovered a three-centimeter laceration to her left fornix, located next to her cervix. In 19 years of practice, Dr. Sved had seen this type of injury among post-menopausal women only 3 times. Dr. Sved repaired the tear and J.D. was able to go home later that day.

[18] Dr. Sved also testified about J.D.’s utterance that she was injured during “forced intercourse.” I return to this issue below in my discussion of the prior consistent statement ground of appeal.

C. the trial judge’s Rulings and reasons

[19] The trial judge provided written reasons on the defence applications made under ss. 276 and 278 of the Code. I will describe these reasons in more detail during the discussion of those grounds of appeal.

[20] The trial judge gave written reasons for judgment at the end of the trial. Ultimately, he accepted J.D.’s evidence. The trial judge found that her “forced intercourse” utterance to Dr. Sved, “greatly assists the Court in assessing her credibility and reliability.” He rejected the appellant’s evidence, and was satisfied of his guilt beyond a reasonable doubt. The trial judge found the appellant not guilty of sexual assault causing bodily harm, but guilty of sexual assault.

D. Analysis

(1) Introduction

[21] As set out in para. 3, above, the appellant raises four grounds of appeal. I would allow the appeal on the basis that the trial judge misused J.D.’s “forced intercourse” utterance. This error requires that the conviction be set aside and a new trial be ordered. In the event that there is a re-trial, I address the appellant’s other grounds of appeal.

[22] Before turning to these grounds, I wish to comment briefly on the appellant’s acquittal on the charge of sexual assault causing bodily harm. The trial judge found that J.D.’s serious injury occurred when she was penetrated from behind, during what he accepted was “rough sex.” However, before addressing the issue of consent, the trial judge said:

I have a reasonable doubt as to whether, despite the orders of [D.K.] to [J.D.] during and preceding this sexual activity that he intended to cause her bodily harm. Based on the evidence of Dr. Sved, relating to the number of times in his career he had seen this type of injury, I believe that the intercourse, even if I find it was forced and “doggy style” without her consent, upon [J.D.], was one of inadvertence and not one of willful intent to cause bodily harm.

[23] Respectfully, this finding was based on the mistaken assumption that the Crown was required to prove that the appellant intended to cause bodily harm in the circumstances of this case. The trial judge blurred the distinction between (1) cases where bodily harm is caused during non-consensual sexual activity, and (2) cases where consent is vitiated through the intentional infliction of bodily harm. In the first category of cases, all the Crown is required to prove is objective foreseeability of bodily harm; in the second category, in order to vitiate consent, the Crown must prove the bodily harm was both caused and intentional: see R. v. Graham, 2019 ONCA 347, 377 C.C.C. (3d) 205, at paras. 23-27.

[24] This error may have been avoided had the trial judge first made a finding on the issue of consent. Defence counsel took the position that the sexual intercourse was consensual and that J.D.’s consent was not vitiated because her injury was caused accidentally. However, once the trial judge concluded that J.D. had not consented to any sexual activity with the appellant that night, an intent to cause bodily harm was not required for a conviction under s. 272(1)(c). Instead, the trial judge should have considered whether the harm caused to J.D. was reasonably foreseeable: see Hamish C. Stewart, Sexual Offences in Canadian Law (Toronto: Thomson Reuters, 2004) (loose-leaf updated 2019, release 36), at p. 3-74.

[25] It is unclear whether the result would have been different had the trial judge applied the proper test. Regardless, the Crown did not appeal the acquittal on s. 272(1)(c).

[26] I now turn to the appellant’s grounds of appeal.

(2) J.D.’s Utterance – A Prior Consistent Statement

[27] In my respectful view, the trial judge erred in the manner in which he used J.D.’s “forced intercourse” utterance to Dr. Sved. This error must result in a new trial.

[28] The appellant submits that the trial judge erred by using J.D.’s utterance to bolster the credibility of her in-court testimony. The relevant utterance was made shortly before J.D.’s surgery. When Dr. Sved asked her how she sustained her injury, J.D. replied: “[F]orced intercourse.” No one else was present during this discussion. Dr. Sved asked J.D. if she wished to report the incident to the police, but she declined. J.D. did not wish to engage with Dr. Sved. She was upset, and looked away. Dr. Sved did not make a note of this conversation, but he remembered his dealings with J.D. very well because of the rarity of her injury.

[29] At trial, J.D. was not asked about this conversation with Dr. Sved. However, as noted in para. 10 above, she testified that she did not remember anyone at the hospital asking her if she wished to call the police.

[30] For scheduling reasons, Dr. Sved was called as the first witness, testifying before J.D. gave her evidence. As the trial Crown explained to the trial judge: “[I]t’s anticipated that there may be an allegation of recent fabrication. So I intend to elicit from the doctor what [J.D.] said to Dr. Sved. Of course, if that’s not … a relevant issue, then Your Honour can disabuse your mind of that.” Defence counsel agreed to this manner of proceeding.

[31] During cross-examination, defence counsel suggested to J.D. that her allegation against the appellant was a fabrication and related to an (ultimately unsuccessful) application she had made to the Criminal Injuries Compensation Board. Moreover, a dominant theme in the cross-examination was that J.D. had interacted with police officers and other criminal justice officials on various occasions after November 16, 2013, but before making the allegations in this case. During these encounters she made criminal allegations against the appellant, but never mentioned the sexual assault giving rise to this case.

[32] At the end of the trial, it appears that defence counsel believed that recent fabrication was a live issue. In written submissions he stated:

After the alleged sexual assault, the Complainant made several allegations of criminal conduct against the appellant without alleging sexual misconduct on November 16, 2013. The evidence of Dr. Sved may serve the limited purpose of showing that the allegation was not fabricated for the first time years later when the Complainant finally had a charge laid.

The only possible probative value the statement had is to show that this allegation was not entirely invented at a later date. It is neither admissible for its truth nor as corroboration of the Complainant’s account. [Emphasis added.]

[33] However, Crown counsel’s position had changed. She made no mention of recent fabrication. In her written submissions, the Crown suggested that J.D’s “forced intercourse” statement was a “spontaneous utterance” made in “circumstances of reliability”. Relying on R. v. Khan, 2017 ONCA 114, 136 O.R. (3d) 520, leave to appeal refused [2017] S.C.C.A. No. 139, the Crown argued that the utterance was “admissible as part of the narrative of disclosure and can be used to assess the credibility of [J.D.’s] in court testimony.”

[34] Prior consistent statements are presumptively inadmissible. There are several rationales for this rule, including that prior consistent statements (1) lack probative value; (2) are often self-serving; and (3) are hearsay: see S. Casey Hill, David M. Tanovich and Louis P. Strezos, eds., McWilliams’ Canadian Criminal Evidence, 5th ed. (Toronto: Thompson Reuters, 2019) (loose-leaf updated 2019), at p. 11-2; R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, at para. 5; and R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 36.

[35] The overwhelming danger is that a trier of fact may improperly use the mere repetition of a statement as a badge of testimonial trustworthiness. As Hourigan J.A. said for the majority in Khan: “[S]uch evidence cannot be used for the prohibited inference that consistency enhances credibility, or the incorrect conclusion that the simple making of a prior consistent statement corroborates in-court testimony”: at para. 41; see also Stirling, at para. 7; R. v. Divitaris (2004), 2004 CanLII 9212 (ON CA), 188 C.C.C. (3d) 390 (Ont. C.A.), at para. 28; R. v. D.C., 2019 ONCA 442, at para. 19; and R. v. S.K., 2019 ONCA 776, 148 O.R. (3d) 1, at para. 90.

[36] The rule against prior consistent statements is subject to a number of exceptions. For example, a prior consistent statement may be admitted for the limited purpose of rebutting an allegation of recent fabrication: Stirling, at paras. 5-7.

[37] Prior statements may also be admitted where they are “necessary to the unfolding of the events or narrative of the prosecution”: see Dinardo, at para. 37. On this basis, a prior consistent statement may be admitted to assist with understanding how the case came before the court or to appreciate the “chronological cohesion” of the case: R. v. Fair (1993), 1993 CanLII 3384 (ON CA), 16 O.R. (3d) 1 (C.A.), at p. 18; Khan, per Hourigan J.A., at para. 30. To be admissible under this exception, the statement must be “truly essential” to the unfolding of the narrative: R. v. M.C., 2014 ONCA 611, 314 C.C.C. (3d) 336, at para. 91.

[38] Further, prior statements may be admissible under the narrative as circumstantial evidence exception. Admissibility on this basis of such does not hinge on the mere repetition of the same information. As explained by Hourigan J.A. in Khan: “A prior consistent statement can be used not to corroborate the evidence of the witness, but to provide the surrounding circumstances and context to evaluate the credibility and reliability of the witness’s in-court testimony”: at para. 39; see Dinardo, at para. 31.

[39] J.D.’s “forced intercourse” utterance was not admissible under any of these exceptions. Although her words had the potential to rebut an allegation of recent fabrication, as originally contemplated by counsel, the trial judge did not rely upon this exception. In his reasons the trial judge stated: “There has been no suggestion in cross-examination that [J.D.] has recently fabricated the events as she described them in her evidence.” Thus to the extent he relied on J.D.’s utterance, it was not to rebut an allegation of recent fabrication.

[40] Nor was the statement admissible under the pure narrative exception. The admission of J.D.’s “forced intercourse” utterance was not necessary to explain the narrative of the case and how it came before the court. The basic sequence of events, as harrowing as they were, was undisputed and relatively straightforward. The trial judge’s reasons offer no indication he used the utterance in this way.

[41] At the Crown’s request, the trial judge applied the narrative as circumstantial evidence exception. He acknowledged the Crown’s submission that the utterance was admissible “for the sole purpose of being of assistance in the Court’s ability to determine the reliability and credibility of … [J.D.’s] testimony.” His reasons then veered in the direction of the principled approach to hearsay, suggesting that he considered whether the statement was admissible for its truth. The trial judge examined the circumstances in which the utterance was made, noting that it occurred in the context of a doctor-patient relationship. The trial judge found that “although not spontaneous, the statement has an air of truthfulness. It is consistent with her statement to the police in 2016 and I can find no reason to believe she would be motivated to tell Dr. Sved something false.” The trial judge said:

There is of course a limited use the Court can make of the prior consistent statement of [J.D.] but I accept the Crown’s position based on these unique circumstances that there is probative value in the prior consistent statement beyond the mere repetition. The Crown also points to the fact that in her testimony [J.D.] did not recall making the statement to Dr. Sved. That circumstance gives the utterance made by her and recorded by the doctor an additional reliability factor.[^1]

I agree with the Crown and find that the prior consistent statement can be admitted for its limited use in assisting the Court in assessing [J.D.’s] in-court testimony. [Emphasis added.]

[42] The trial judge referred to the statement again later in his reasons:

The defendant claims that the failure of [J.D.] to disclose the events of November 16, 2013 until 2016 casts doubt on her reliability and credibility as to the events of November 16, 2013.

In the circumstances of [J.D.’s] reporting while sheltered in Guelph, the probative value of the prior consistent statement of Dr. Sved on November 16, 2013 greatly assists the Court in assessing her credibility and reliability. [Emphasis added.]

[43] It is difficult to discern the precise use that the trial judge made of J.D.’s utterance. Parts of his analysis suggest that he considered the statement for the truth of its contents – an impermissible use of the utterance: see Dinardo, at para. 36; R. v. J.A.T., 2012 ONCA 177, 290 O.A.C. 130, at paras. 97-100; and R. v. A.V., 2020 ONCA 58, at para. 20. On the other hand, the trial judge purports to engage the narrative as circumstantial evidence exception discussed in Khan. The trial judge was also impressed with the fact that J.D.’s utterance was consistent with her in-court testimony and her statement to the police. This further compounded the problem.

[44] Distinguishing between the permissible and impermissible uses of prior consistent statements is difficult: see Dinardo, at para. 37. This may be particularly the case when applying the narrative as circumstantial evidence exception: see Sidney N. Lederman, Alan W. Bryant, and Michelle K. Fuerst, The Law of Evidence in Canada, 5th ed. (Markham, Ontario: LexisNexis, 2018), at p. 448. The changing positions of counsel in this case did not help.

[45] The party seeking admission of a prior consistent statement should identify the precise basis upon which it should be received: see David M. Paciocco, “The Perils and Potential of Prior Consistent Statements: Let's Get It Right” (2013), 17 Can. Crim. L. Rev. 181, at 215. When addressing the narrative as circumstantial evidence exception, general statements are unhelpful; counsel should articulate exactly how the statement might assist the trier of fact in evaluating testimonial trustworthiness. As Doherty J.A. observed in Khan, at paras. 62 and 64:

Once the purpose for offering the evidence is identified, the party tendering the evidence must show that it has some probative value in respect of the purpose for which it is offered. For example, if it is said that the evidence of the prior consistent statement is relevant to the complainant’s credibility, the party offering the evidence must show how it is relevant to the complainant’s credibility.

It is not enough, however, for the Crown to show that the complainant’s credibility is a material fact. The Crown must also demonstrate how the prior consistent statement can impact positively on the complainant’s credibility. If the Crown’s argument comes down to the suggestion that the consistency between the prior statement and the complainant’s evidence at trial justifies admissibility, the argument fails because consistency on its own provides no insight into credibility. [Emphasis added.]

Similarly, trial judges should also articulate how a prior consistent statement assists in assessing the trustworthiness of a witness’s in-court testimony.

[46] The trial judge failed to properly explain how J.D.’s utterance to Dr. Sved “greatly assists the Court in assessing her credibility and reliability.” Considering the trial judge’s reasons as a whole, it appears that the real value derived from her utterance was the repetition of the same allegation made at trial (and to the police). The utterance was not admissible on this basis. This improper use of the utterance permeated the trial judge’s reasons.

[47] In conclusion, I note that this case demonstrates the hazards of calling witnesses out of order. Had Dr. Sved given his evidence after J.D. testified, as originally planned, counsel and the trial judge may have been in a better position to determine whether there was a proper basis for receiving evidence of J.D.’s utterance.

[48] I would allow the appeal and order a new trial on this basis.

(3) Other Sexual Activity Involving J.D.

[49] Defence counsel at trial made an application to adduce evidence that J.D. “engaged in sexual activity other than the sexual activity that forms the subject-matter of the charge”: Criminal Code, s. 276(2). As originally framed, the application was alarmingly broad, seeking leave to adduce evidence that:

• The appellant and J.D. had been involved in an ongoing consensual sexual relationship before and after the date of the alleged offence, November 16, 2013 (the “relationship evidence”);
• The J.D. reported on January 19, 2015 that the appellant sexually assaulted her on January 2, 2015 while holding her hostage (the “second sexual assault allegation”);
• J.D. had engaged in sex work to support the appellant’s drug habit; and that
• J.D. had been the victim “of a lot of sexual abuse when … younger”.

When the application was argued, counsel limited the scope of his request to the relationship evidence. The trial judge declined to permit cross-examination on this subject.

[50] On appeal, the appellant submits that he should have been permitted to adduce evidence that, after November 16, 2013, J.D. and the appellant continued to have consensual sex. He submits that questioning in this area may have generated evidence capable of showing that the sexual intercourse on November 16, 2013 was consensual.

[51] I disagree. This evidence would have encouraged the very reasoning prohibited by s. 276 – that consent on other occasions suggests the complainant consented to the sexual activity in question.

[52] The reach of s. 276 is broad. It applies to consensual and non-consensual activity by a complainant, including conduct occurring before, at the time of, and after the alleged sexual assault: see R. v. L.S., 2017 ONCA 685, 354 C.C.C. (3d) 71, at paras. 77-81; R. v. Goldfinch, 2019 SCC 38, per Moldaver J., at para. 111; and Stewart, at pp. 8-7 to 8-8. The purpose of s. 276 is to prohibit “all discriminatory generalizations” about a complainant’s credibility and disposition to consent: R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443, at para. 34.

[53] In this case, trial counsel sought to use the evidence of subsequent sexual activity to demonstrate that it was more likely that J.D. consented to intercourse with the appellant on November 16, 2013. This is clear from the following exchange between defence counsel and the trial judge:

The Court: So you’re saying that … the fact that there was sexual activity between your client and the complainant after the events of November 2013 would permit a trier of fact to draw an inference that there must have been consent, or could have been consent, on that particular day when the offence is alleged to have been committed.

Defence Counsel: Correct.

The Court: All right. Isn’t that one of the myths that 276 was designed to prevent?

[54] Most cases under s. 276 involve evidence of sexual activity that precedes the alleged offence. In this case, the relevant sexual activity is alleged to have occurred afterwards. In my view, it makes no difference. The same prohibited reasoning is involved – i.e., because a person consented to sex at some other point in time, it is more likely that he or she consented on the occasion in question: Goldfinch, per Karakatsanis J., at para. 33.

[55] The appellant relies on L.S., in which this court held that the trial judge erred in ruling inadmissible evidence of subsequent consensual sexual activity between L.S. and the complainant. The trial judge correctly ruled that L.S. has no application in cases where the disputed issue is consent.

[56] The inference that the trial judge was asked to draw in this case was very different from L.S.; it directly engaged the language of s. 276(1)(b) (i.e., “consent”) and the mischief it seeks to avoid (i.e., reasoning based on stereotypes). While holding that the evidence ought to have been admitted in the circumstances of that case, L.S. reaffirmed that reliance on subsequent sexual activity will violate s. 276 when it bears on consent. This is evident from Doherty J.A.’s discussion of appropriate jury instructions, at para. 97:

I am confident that the trial judge could have effectively explained to the jury that evidence that there was no change in the relationship between E.K. and the appellant, including the sexual component of that relationship, after the alleged assault, was evidence to be considered, along with the other relevant evidence, in deciding whether the Crown had proved beyond a reasonable doubt that the incident described by E.K. had in fact occurred. I am equally confident that the trial judge could have made it clear to the jury that if, after considering all of the relevant evidence, the jury was satisfied beyond a reasonable doubt that the incident described by E.K. had occurred, evidence that E.K. and the appellant had engaged in consensual sexual intercourse on other occasions had no relevance to, and was of no assistance in, determining whether E.K. had consented to sexual intercourse on the occasion in issue. [Emphasis added.]

In this case, given that the evidence of subsequent sexual activity was only relied upon to prove consent, it was clearly caught by s. 276(1)(b). It was inadmissible.

[57] There may be many reasons why a person who is subjected to sexual violence might later have consensual sexual relations with her abuser. As Doherty J.A. observed in L.S., at para. 89: “Different people will react differently to the same event”. It will depend on the people involved, their experiences, life circumstances, and the nature of the relationship. Allowing a trial to proceed down this path may well place a complainant in the situation of having to explain not only what happened on the occasion in question, but why she continued in a sexual relationship with her alleged abuser. As Doherty J.A. warned in L.S.: “Far-ranging cross-examination of complainants about other sexual activity runs the very real risk of intimidating, humiliating and distracting the complainant in the course of his or her testimony”: at para. 66; see also Goldfinch, per Karakatsanis J., at para. 33.

[58] Allowing J.D. to be cross-examined on any subsequent consensual sexual activity she may have had with the appellant would have opened the trial up to consideration of stereotypical assumptions about how sexual assault victims “should behave” after the fact. As Professor Dufraimont recently observed, “victims do not follow a standard script, and courts cannot reason as if they do”: see Lisa Dufraimont, “Myth, Inference and Evidence in Sexual Assault Trials” (2019) 44 Queen’s L.J. 316, at p. 352. The trial judge was correct to foreclose this line of questioning.

[59] I would not give effect to this ground of appeal.

(4) Third Party Records Application

[60] As part of its trial strategy, the defence attempted to demonstrate a pattern of J.D. making false accusations against the appellant. Defence counsel sought to show this pattern by using videotaped statements made by J.D. in two unrelated proceedings.

[61] With respect to the first proceeding, in December 2013, J.D. gave two videotaped statements in which she alleged that the appellant committed a break and enter. J.D. later recanted and the charges against the appellant were withdrawn. J.D. entered a plea of guilty to theft.

[62] J.D. also gave two videotaped statements in January 2015 in which she alleged that the appellant forcibly confined her over the course of months, and sexually assaulted her. At the end of the preliminary inquiry, the Crown withdrew all charges except one count of assault, to which the appellant pled guilty.

[63] The appellant’s counsel retained copies of the videotapes made in these cases. When the videotapes were originally disclosed, defence counsel signed written undertakings acknowledging that the videotapes could only be used to defend the case to which they pertained, and agreeing to return the tapes to the Crown at the end of the proceedings.

[64] The Crown took the position that counsel could not use the videotaped statements in this case absent an order under s. 278.2 of the Criminal Code. The trial judge agreed.

[65] The trial judge ultimately dismissed the s. 278.2 application on its merits. He found that there was “negligible probative value in the use of the complainant’s statements in the trial before me.” More specifically, applying this court’s decision in R. v. Riley (1992), 1992 CanLII 7448 (ON CA), 11 O.R. (3d) 151 (C.A.), as he was asked to do by defence counsel, the trial judge concluded that J.D.’s statements did not form a pattern of behaviour, and that “a complainant should only be cross-examined on past allegations if they are proven to be demonstrably false.” He concluded that the withdrawal of the charges against the appellant was not capable of showing that the allegations made by J.D. were demonstrably false, noting that there are many reasons why charges may be withdrawn.

[66] The appellant submits that the trial judge erred in refusing to permit the use of these videotaped statements. He takes the position that the statements were relevant to J.D.’s credibility at large and, as such, were not collateral. Since they were relevant to J.D.’s overall credibility, the trial judge proceeded on the wrong premise by requiring the defence to show the evidence was capable of proving that J.D. made allegations that were demonstrably false. Moreover, relying on R. v. R. (D.), 1996 CanLII 207 (SCC), [1996] 2 S.C.R. 291, the appellant contends that, because credibility was the central issue in this case, the collateral facts rule ought not to stand in the way of introducing these statements into evidence. Finally, the appellant contends that as they were prior inconsistent statements, he was entitled to cross-examine J.D. on them under s. 11 of the Canada Evidence Act, R.S.C. 1985, c. C-5.

[67] The Crown responds that while it was open to defence counsel to cross-examine J.D. in relation to the other charges, he was not entitled to use the videotaped statements to do so. Pointing out that defence counsel sought to play all of the videos during his cross-examination of J.D., the Crown argues that the proposed use of the statements would have been barred by the collateral facts rule.

[68] The trial judge did not err in dismissing the s. 278.2 application. His finding that the videotapes were not “likely relevant” to an issue at trial is well-grounded: Criminal Code, s. 278.5(1)(b). Further, the interests of justice did not require their production: s. 278.5(1)(c).

[69] The trial judge found that the circumstances pertaining to the two previous proceedings were not capable of demonstrating a pattern of J.D. making false allegations against the appellant. This conclusion was amply supported by the evidence – particularly given that in the second case, the appellant entered a plea of guilty at the end of the preliminary inquiry. In R. v. C.F., 2017 ONCA 480, 349 C.C.C. (3d) 521, Huscroft J.A. explained: “If the defence is unable to establish that a complainant has recanted a prior allegation or that it is demonstrably false, the fact the allegation was made loses its relevance”: at para. 70; see also R. v. M.T., 2012 ONCA 511, 289 C.C.C. (3d) 115, at paras. 45-50. Accordingly, the videotaped statements had no probative value on the basis advanced by the appellant at trial.

[70] I acknowledge that the four statements may well have been relevant to J.D.’s credibility. However, s. 278.3(4) of the Criminal Code provides:

Any one or more of the following assertions by the accused are not sufficient on their own to establish that the record is likely relevant to an issue at trial or to the competence of a witness to testify:

(d) that the record may disclose a prior inconsistent statement of the complainant or witness;

(e) that the record may relate to the credibility of the complainant or witness …

This may well have been the reason that trial counsel attempted to characterize these statements within the framework of Riley.

[71] Nevertheless, and despite the trial judge’s ruling, defence counsel was afforded ample opportunity to challenge J.D.’s credibility through cross-examination. He was permitted to cross-examine J.D. on the other two incidents, and he did so – extensively. However, I agree with the Crown that the use of the videotaped statements themselves was barred by the collateral facts rule.

[72] Because the collateral facts rule is intertwined with trial management considerations, trial judges exercise considerable discretion in its application, which is entitled to deference: R. v. Strojny, 2019 ONCA 329, at para. 67. Permitting defence counsel to cross-examine J.D. on statements made during completely unrelated proceedings would have been an unwarranted distraction and would have resulted in time-consuming “sub-litigation of non-essential issues”: R. v. A.C., 2018 ONCA 333, 360 C.C.C. (3d) 540, at para. 46. The trial judge’s refusal to allow counsel to engage in the lengthy process of dragging J.D. through her four videotaped statements was a proper exercise of his discretion.

[73] I would not accede to this ground of appeal.

(5) Burden of Proof

[74] Finally, the appellant submits that the trial judge reversed the burden of proof when considering his evidence. I disagree.

[75] The trial judge observed that the appellant’s evidence consisted of “multiple denials” and “many conclusory statements.” Moreover, the trial judge found that the appellant’s rendition of the events of November 16, 2013 sounded rehearsed.

[76] At one point in his reasons, the trial judge said: “I am not persuaded that [the appellant’s] denials of the actions between he and [J.D.] that preceded the sexual activity [are] to be accepted.” While the use of the words “not persuaded” is less than ideal in this context, when considered as a whole, the trial judge’s reasons demonstrate that he found the appellant to be a poor witness and that he did not accept his evidence. It was open to the trial judge to make these findings, and this aspect of his decision is also entitled to deference: R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 10.

[77] I would reject this ground of appeal.

E. conclusion

[78] I would allow the appeal against conviction and order a new trial on a charge of sexual assault, under s. 271 of the Code. This renders the sentence appeal, which was abandoned during the hearing of the appeal in any event, moot.

Released: (“DW”) February 3, 2020

“Gary Trotter J.A.”

“I agree. David Watt J.A.”

“I agree. Grant Huscroft J.A.”

[^1]: As noted in para. 28, above, Dr. Sved did not make a note of this conversation.